Adverse possessor must identify and provide evidence of the boundaries of the land that is being adversely possessed

/ Adverse Possession, Title Issues

An owner cannot claim part of the neighbor’s land by adverse possession without clear evidence of where the border is. In Coscina v. DiPetrillo, 186 A.3d 590 (R.I. 2018), the adverse possessor claimed occupation of parts of her neighbor’s land but court documents repeatedly changed the location of the claimed line between the properties. Not only must the adverse possessor establish where the line is that encompasses the property acquired by adverse possession but must show sufficient evidence to establish the requisite acts of possession up to that line. 

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Town acquires prescriptive easement allowing public to use a road and abutting parcel

/ Adverse Possession, Easements, Takings

When a road and abutting triangle of land was used the public and maintained by the town, the town acquired a prescriptive easement for continued use of the road by the public. Athanasiou v. Board of Selectmen of Westhampton,82 N.E. 3d 436 (Mass. App. Ct. 2017). The town’s highway superintendent maintained the area, plowed, sanded, oiled, and graveled the roadway, patched potholes, removed trees and fallen limbs from the area and cleared sediments from the triangle parcel.

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Tenant can be evicted for allowing adult son to live with her

/ Leaseholds

A court has held that a tenant can be evicted for allowing her adult son to live with her when his name was not on the lease along with hers, making him an unlawful occupant. Atlantic Tambone Mgmt. v. Mejia, 2017 WL 4181374 (Mass. Dist. Ct. App. Div. 2017). The reason for the eviction also rested on the fact that the son had stolen a television that had been delivered to the building for another tenant, thus violating a lease provision that prohibited interfering with the quiet enjoyment of neighboring tenants.

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Possibility of reverter or right of entry cut off after 30 years

/ Estates and Future Interests, Real Estate Transactions, Restraints on Alienation, Title Issues

Massachusetts law sets a thirty year limit to possibilities of reverter following a fee simple determinable or rights of entry following a free simple subject to condition subsequent. Mass. Gen. Laws ch. 184A, §7. This contrasts with the 90 year limit for executory interests. Mass. Gen. Laws ch. 190B, § 2-901. The 30 year limitation was recently applied in Town of Winchendon v. Brandywine Farms, Inc.,2018 Mass. LCR LEXIS 91, 2018 WL 2297177, 26 Land Ct. Reporter 253 (Mass. Land Ct. 2018).

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Nonuse insufficient to show an easement was abandoned and it is not extinguished by prescription when a locked gate did not make it impossible for the easement owner to use the right of way

/ Adverse Possession, Easements, Servitudes

A locked gate did not extinguish the right to use an express easement when the fence was intended to keep out the public and did not prevent the easement owner from accessing the right of way. Twenty Bartlett, LLC v. Sgarano, 2018 Mass. Super. LEXIS 104 (Mass. Super. Ct. 2018). Only if an action renders use of an easement “practically impossible” can it start the statute of limitations running for a prescriptive easement that will extinguish the easements after the statutory period. The court required greater evidence that the easement owner was actually excluded and that the land owner was actually exercising exclusive control over the path.

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No claim against neighbor for damage caused by overhanging healthy tree

/ Nuisance, Trespass

The Massachusetts Supreme Judicial Court has reaffirmed the “Massachusetts rule” that owners cannot sue their neighbors for any damage caused by an overhanging healthy tree. Shiel v. Rowell, 101 N.E.3d 290 (Mass. 2018). The remedy is for the owner to trim the branches that encroach on his property before they cause damage. In upholding the established rule, the court rejected the “Hawaii rule” which imposes liability on the owner of the tree if it causes harm to neighboring property. See Whitesell v. Houlton, 632 P.2d 1077 (Haw. 1981). Note that the Massachusetts rule does impose an obligation on owners to remove unhealthy trees and imposes liability for any harms to neighbors caused by such trees.

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Condo owner may be liable for wrongful death of neighbor when he rented his unit to his brother knowing he was a dangerous sex offender

/ Antidiscrimination Law, Condominiums and Homeowners Associations, Nuisance

A court has held that a landlord may be liable for wrongful death of a neighboring condo owner if he rents his unit to his brother, knowing he is a sex offender who often stops using needed medication and is capable of violent outburst when he did not use his medication, fails to warn the neighbors of his presence, and the landlord’s brother kills a neighboring owner.  Steele v. Kings Way Condominium Trust, 2018 Mass. Super. LEXIS 103 (Mass. Super. Ct. 2018).

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Airbnb use held to be consistent with covenant restricting property to residential use

/ Condominiums and Homeowners Associations, Consumer Protection, Servitudes

Courts have divided on the question of whether short-term rentals violate restrictive covenants limiting land to residential purposes. The Texas Supreme Court just joined the majority that hold that use of property for Airbnb and similar short term rentals is residential use consistent with the covenant. Tarr v. Timberwood Park Owners Ass’n, 2018 Tex. LEXIS 442 (Tex 2018). But see Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014) (finding short-terms rentals to be closer to hotel use and thus commercial in nature).

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Section 8 (housing voucher) tenants cannot be evicted without cause even if their lease term has expired and the landlord has opted out of the housing assistance program

/ Consumer Protection, Homelessness, Leaseholds, Real Estate Transactions, Restraints on Alienation

The Third Circuit has ruled that the federal statute, 42 U.S.C. §1437f(t)(1)(B), that gives Section 8 (housing voucher) tenants the right to “remain in their housing developments, even after their landlord has opted out of the federal housing assistance program,” gives them the right to stay unless just cause can be shown to evict have the right to remain even if the lease term has expired. Hayes v. Harvey, 2018 U.S. App. LEXIS 24848 (3d Cir. 2018).

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Seventh Circuit holds that the Fair Housing Act prohibits discrimination based on sexual orientation

/ Antidiscrimination Law, Concurrent or Common Ownership, Fair Housing Act, Gender Identity, Sexual Orientation

Extending a former precedent concerning employment discrimination, Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), a three judge panel of the Seventh Circuit has held that discrimination based on sexual orientation in housing is a form of sex discrimination prohibited by the Fair Housing Act. Wetzel v. Glen St. Andrew Living Community, LLC, 2018 U.S. App. LEXIS 24193 (7th Cir. 2018). The case involves a continuing care retirement community which failed to protect one of its residents from harassment by other residents directed at her because she is a lesbian. The court held that a landlord is liable for tenant-on-tenant harassment when it has actual notice of it but chooses not to take any reasonable steps to stop that harassment. Harassment is outlawed if it is severe or pervasive and that is the case where the harassment objectively interferes with teh enjoyment of the premises

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